California Lawyer: Yet Another Reason Prop. 8 is Unconstitutional

Ballot initiatives in California have been around for a long, long time. (Indeed, I have dim memories of disagreements between my parents over a controversial initiative passed in 1978, Proposition 13, which limited property-tax levels.)

But an appellate lawyer in Oakland, Calif., has filed a brief before the Ninth Circuit that could shake the entire initiative process to its foundations.

Jon Eisenberg, a partner at Eisenberg & Hancock, filed papers this week arguing that California’s same-sex marriage ban, Proposition 8, should be struck down because the whole ballot initiative process was improperly voted into law nearly a century ago. Click here for Amanda Bronstad’s story in the National Law Journal.

The rationale goes like this: California’s initiative process was passed by both houses of the state legislature and was voted into law as “Senate Amendment 22″ by the people of California in 1911. But the process should have been put into law as a “revision,” rather than an “amendment,” to California’s constitution. A revision would have required a supermajority of both houses of the legislature and a constitutional convention.

The gaffe has had significant ramifications, argues the brief. The initiative process has morphed California “from a republican form of government into a direct democracy, which the Chief Justice of California describes as ‘dysfunctional,’” the brief says. “A simple majority of voters overturned the California Supreme Court’s earlier decision that the California Constitution protected gay men and lesbians with respect to the right to marry.”

Eisenberg said he is asking the 9th Circuit to certify the question for the California Supreme Court to review.

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The Law Blog covers the legal arena’s hot cases, emerging trends and big personalities. It’s brought to you by lead writer Jacob Gershman with contributions from across The Wall Street Journal’s staff. Jacob comes here after more than half a decade covering the bare-knuckle politics of New York State. His inside-the-room reporting left him steeped in legal and regulatory issues that continue to grab headlines.

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